One of the Public Health Advocacy Institute’s founding board members, Ben Kelley, is a longtime auto safety expert with considerable experience with the issue from both in and outside of government. He has just published an op-ed in the Los Angeles Times (and Fair Warning) that benefits from his long memory of General Motors’ apologies and promises made to Congress over nearly a 50-year span. It puts GM’s failure to recall its defective ignition systems in a new and especially unflattering light. It also describes the difference in regulatory interest from Congress in 2014 as compared to 1966.

In a study examining availability of water fountains in schools published in the May, 2014 issue of the CDC journal, Preventing Chronic Disease,
PHAI’s senior staff attorney, Cara Wilking, along with CDC researchers, Stephen J. Onufrak and Sohyun Park found that state plumbing codes were a predictor of whether and how many water fountains were available to children.

Because the availability of plain drinking water to schoolchildren is an important strategy to reduce sugary beverage intake of empty calories, understanding the factors that facilitate or frustrate prevalence of water fountains is a key to successful implementation of this strategy.

In an editorial published in the May, 2014 issue of the journal, Tobacco Control, PHAI’s Executive Director, Mark Gottlieb, calls the FDA’s approach to implementation of the Family Smoking Prevention and Tobacco Control Act, “Overcautious,” and urges the agency and the White House to take a much more aggressive approach to saving lives.

The summary of the editorial, entitled “Overcautious FDA has Lost its Way,” states:

Five years after the passage of the Family Smoking Prevention and Tobacco Control Act, little progress has been made in the effort to regulate the US tobacco industry and advance the public health goals of tobacco control. Legal challenges by the tobacco industry, and evidence of political interference from the White House have resulted in the US Food and Drug Administration’s (FDA) overcautious approach toward advancing a meaningful regulatory agenda. While the White House bears final responsibility, it is incumbent upon the FDA and its Center for Tobacco Products to become more aggressive and seize the extraordinary opportunity to save lives that the Family Smoking Prevention and Tobacco Control Act has created.

Despite the capabilities of the FDA’s Center for Tobacco Products and its director, Mitchell Zeller, who directed the FDA’s tobacco efforts in the 1990s under commissioner David Kessler, progress in meaningfully regulating tobacco products is moving at a glacial pace. Predictably, the tobacco industry is utilizing its full legal arsenal to challenge and delay FDA’s efforts. It is becoming apparent that the White House is also responsible for the FDA’s inaction through delays caused by its Office of Management and Budget.

Gottlieb believes that the agency should be: (1) eliminating menthol; (2) regulating nicotine levels to reduce dramatically abuse liability and toxic exposure; (3) implementing arresting and effective graphic warnings; (4) facilitating an increase of the national minimum tobacco sales age to 21; and (5) responsibly controlling new tobacco products’ entry into the market. This is simply not happening.

Gottlieb suggests that because litigation by the tobacco industry to challenge regulatory action is inevitable, the best strategy is for the FDA to use the best available evidence now and rollout the regulatory agenda as fast as the law will allow. Delay only serves to benefit the industry and, consequently, increase the morbidity and mortality that the industry’s products cause in the United States.

Another suggestion by Gottlieb is for FDA to consider how Sharon Eubanks, lead attorney for the U.S. Department of Justice, handled similar legal and political challenges when litigating the racketeering case, U.S. v. Philip Morris.

The editorial concludes by noting that, “[t]here exists no better public health opportunity of any kind than this one, now in the hands of the FDA. They should run with it, not from it.”

After much criticism and prodding, Fast food giants McDonald’s and Burger King agreed to depict healthier food options in advertising directed at children. Researchers at the Norris Cotton Cancer Center at Dartmouth-Hitchcock, along with the Public Health Advocacy Institute (PHAI) at Northeastern University School of Law, found that attempts to honor these pledges by depicting healthier kids’ meals frequently go unnoticed by children ages 3 to 7 years-old. In research published on March 31, 2014 in JAMA Pediatrics, these researchers found that one-half to one-third of children did not identify milk when shown McDonald’s and Burger King children’s advertising images depicting that product. Sliced apples in Burger King’s ads were identified as apples by only 10 percent of young viewers; instead most believed that the ads were depicting french fries.

Children in the study were confused by the images of food. One typical participant said, “And I see some…are those apples slices?”

The researcher replied, “I can’t tell you…you just have to say what you think they are.”

“Burger King’s depiction of apple slices as ‘Fresh Apple Fries’ was misleading to children in the target age range,” said principal investigator James Sargent, MD, co-director Cancer Control Research Program at Norris Cotton Cancer Center. “The advertisement would be deceptive by industry standards, yet their self-regulation bodies took no action to address the misleading depiction.”

Mark Gottlieb, Executive Director of PHAI and an author of the study, observed that, “when young children believe they will be getting french fries with their meals because of deceptive or confusing advertising imagery, they may insist that the adult bringing them orders french fries instead of apple slices. Likewise, if advertising leads children to expect a sugary drink rather than milk, they may well end up getting the sugary drink. This has the effect of undermining the self-regulatory pledges that the companies made.”

Study author and PHAI Senior Staff Attorney Cara Wilking said she found it, “troubling that fast food giants would publicly make a self-regulatory pledge, fail to live up to the pledge, and receive no sanction from the relevant self-regulatory body. Such failures suggests that self-regulation is often more about public relations than about fulfilling the role of actual governmental regulation.”

Sargent and his colleagues studied fast food television ads aimed at children from July 2010 through June 2011. In this study researchers extracted “freeze frames” of Kids Meals shown in TV ads that appeared on Cartoon Network, Nickelodeon, and other children’s cable networks. Of the four healthy food depictions studied, only McDonald’s presentation of apple slices was recognized as an apple product by a large majority of the target audience, regardless of age. Researchers found that the other three presentations represented poor communication.

This study follows an earlier investigation conducted by Sargent and his colleagues, which found that McDonald’s and Burger King children’s advertising emphasized giveaways like toys or box office movie tie-ins to develop children’s brand awareness for fast food chains, despite self-imposed guidelines that discourage the practice.

While the Food and Drug Administration and the Federal Trade Commission play important regulatory roles in food labeling and marketing, the Better Business Bureau operates a self-regulatory system for children’s advertising. Two different programs offer guidelines to keep children’s advertising focused on the food, not toys, and, more specifically, on foods with nutritional value.

“The fast food industry spends somewhere between $100 to 200 million dollars a year on advertising to children, ads that aim to develop brand awareness and preferences in children who can’t even read or write, much less think critically about what is being presented.” said Sargent.

PHAI Senior Staff Attorney Cara Wilking’s article, State Law Approaches to Curtail Digital Food Marketing Tactics Targeting Young Children, has been published in the January/February, 2014 issue of the Food and Drug Law Institute’s Update Magazine. In the article, Wilking describes why digital marketing, which is inherently deceptive to younger children. She explains the role of packaging, “advergames,” and digital sweepstakes in digital marketing.

Wilking concludes that these practices may trigger specific consumer protection law provisions and case law precedent around unfair and deceptive trade practices and looks to state attorney generals to take steps to stop these practices.

In a “Perspective” article published today in the New England Journal of Medicine, the Executive Director of the Public Health Advocacy Institute at Northeastern University School of Law, Mark Gottlieb, urges adoption of the Tobacco 21 policy as a means to reduce smoking rates by getting tobacco out of high schools. The piece, entitled, “Tobacco 21 — An Idea Whose Time Has Come,” is co-authored with Dr. Jonathan P. Winickoff, a pediatrician at Massachusetts General Hospital and Harvard Professor of Law and Public Health, Michelle M. Mello.

“Tobacco 21″ is shorthand for a legal policy that prohibits the sale or furnishing of tobacco products to persons under the age of 21. The policy was adopted either as a regulation or ordinance in New York City, 7 Massachusetts towns, and the Big Island of Hawaii in 2013. It was pioneered in Needham, Massachusetts in 2005 where, over five years, the smoking rate among high school students has dropped at nearly three times the rate of its neighboring communities where tobacco was available to 18-20 year-olds. Because almost all cigarette smokers start prior to age 21 and quickly become addicted, there is good reason, supported by emerging neuroscience, that deferring access to tobacco products to an age where the brain is less susceptible to the addictive qualities of nicotine will significantly reduce smoking rates.

Co-author Mark Gottlieb said, “Tobacco 21 shows great promise to reduce tobacco use and can be adopted by any state and most cities and towns.” “There is no good reason why a product as addictive and deadly as cigarettes should be made available to teenagers when we know that delaying access will reduce the chance that today’s teens will die prematurely from a smoking-caused disease,” Gottlieb concluded.

In addition to clear explanations of how digital marketing works and why it poses privacy and health risks to youth, key legal issues for state regulators are explored. These issues include personal jurisdiction over out-of-state food and beverage marketing and media companies; the interplay of federal and state laws regulating mobile marketing; and the application of state promotions laws to child consumers.

Nickelodeon, the biggest source of food ads seen by youth, has augmented its media empire through websites, mobile apps and programming that imports content from a popular YouTube channel. All of its digital platforms are ad-supported creating new opportunities for food and beverage companies to target youth.

Digital campaigns are seamlessly woven into food packaging allowing marketers to target youth in supermarkets, convenience stores and fast food restaurants. Packaging often directs youth to digital marketing on mobile devices or online. State regulators have jurisdiction over unfair and deceptive marketing on food packages sold to consumers in their states.

Mobile marketing elements are integrated into food and beverage campaigns. The legal landscape for state oversight of mobile marketing includes federal and state SPAM and telemarketing laws, and the emerging regulation of geolocation tactics.

States are authorized to protect child privacy under federal law and have successfully done so, but teens are not covered by child privacy laws. State attorneys general can fill the teen privacy gap using their general consumer protection authority to ensure that company promises to protect privacy are honored and that teens are not duped into sharing personal information.

Facebook remains the dominant social media platform for teens. Teens growing use of social media has resulted in them being less privacy savvy. Food companies exploit this by prompting teens to login to their websites and participate in promotions via Facebook thereby granting marketers access to vast amounts of personal information.

Digital sweepstakes and contests are in widespread use by the food industry with children as young as 6 years old. Despite repeated enforcement actions by the Children’s Advertising Review Unit (a self-regulatory body); food companies continue to conduct digital promotions with children that exploit their inability to understand that a free means of entry exists or their odds of winning a prize. State attorney general action is needed to augment these self-regulatory efforts to protect children from predatory promotions.

Senior Staff Attorney, Cara Wilking, who was lead author of the report, noted that, “state attorneys general are in a unique position to leverage state law approaches to stop unfair, deceptive, or otherwise illegal digital marketing of unhealthy foods to our youngest and most vulnerable consumers.”

PHAI’s Executive Director, Mark Gottlieb, added, “there is a general failure to understand the disturbing marketing practices that are becoming commonplace in the digital marketing world. This report goes a long way toward closing the knowledge gap between those using powerful technology to sell junk to kids and those who have the responsibility to protect them.”

Richard Daynard, Lissy Friedman, and Mark Gottlieb have co-authored an article published today in the American Journal of Public Health, along with our research partners from Berkeley Media Studies Group (BMSG). The article is entitled: “Cigarettes Become a Dangerous Product: Tobacco in the Rearview Mirror, 1952–1965.”

BMSG’s press release appears below:

Nutrition advocates may be able to use lessons from tobacco control to help government move faster toward protecting the public from harmful food and beverage company products and marketing practices, say the authors of a new study published today by the American Journal of Public Health.

In a content analysis of public and internal documents, the authors, from Berkeley Media Studies Group and the Public Health Advocacy Institute at Northeastern University School of Law, examined national newspapers, tobacco industry documents and the Congressional Record and Congressional Index between 1952 and 1965 to learn how health harms from cigarettes were framed in the early days of anti-tobacco advocacy.

The study found that news coverage of tobacco focused primarily on its health harms — not who was responsible for addressing them. Much as nutrition advocates often see headlines today about sugary drinks, junk food or other products that fuel disease, pre-1965 conversations about cigarettes were typically disconnected from the industry that produced them.

As such, the personal responsibility rhetoric the tobacco industry became known for in the 1980s and beyond — rhetoric that food and beverage companies have borrowed and are using today to forestall government regulation and shift blame for their products’ health harms onto the consumers who buy them — was all but absent from both news coverage and industry documents. Instead, tobacco companies focused on raising doubts about cigarettes’ links to lung cancer. More than three-quarters of tobacco industry documents denied that cigarettes are harmful to health, with industry spokespeople claiming that the causes of cancer are complex and more research was needed. The industry also discussed cigarettes’ alleged benefits, such as a “feeling of well-being and refreshment.”

What little discussion there was of culpability identified both individuals and industry as sharing blame for the problem and, strikingly given today’s political discourse, called upon government to act.

“The backdrop for early tobacco control was wildly different from today’s political climate,” Lori Dorfman, the study’s lead author and director of the Berkeley Media Studies Group, said. “Profound distrust of the government has made it harder for public health advocates to make the case for protections from harmful products. In the 60s, a belief in government’s duty to act to protect public health was the norm.”

According to the study, government action was contested only in internal industry documents, not public discussion. News coverage and legislative documents questioned not whether the government should act, but how.

Nevertheless, once the dangers of cigarettes were established, actions were individually oriented and related mostly to providing consumers with more education and warnings about smoking’s health harms.

“We now take for granted how effective tobacco taxes and indoor smoking bans are,” study author and Public Health Advocacy Institute Director Mark Gottlieb said. “But moving tobacco control efforts from smoking cessation to industry regulation happened over the long haul.”

The study authors suggest that advocates now pushing for healthier food environments may be able to do the same, shifting attention from unhealthy foods and beverages to the companies that manufacture and market them. However, they will have to do so within a changed, and more challenging, political context.

Berkeley Media Studies Group researches the way public health issues are characterized in the media and helps community groups, journalists and advocates use the media to advance healthy public policy. BMSG is a project of the Public Health Institute.

About Public Health Advocacy Institute

The Public Health Advocacy Institute (PHAI) is a legal research center focused on public health law at Northeastern University School of Law. PHAI’s goal is to support and enhance a commitment to public health in individuals and institutes who shape public policy through law. PHAI is committed to research in public health law, public health policy development; to legal technical assistance; and to collaborative work at the intersection of law and public health. Their current areas of work include tobacco control and childhood obesity.

PHAI’s President and University Distinguished Professor of Law at Northeastern University, Richard A. Daynard, has joined more than 30 other scholars from a variety of disciplines around the country who have signed on to a report issued by the non-profit and non-partisan Institute for American Values. The report, “Why Casinos Matter,” provides 31 evidence-based reasons why American casinos need to be understood in terms of how they are significantly affecting our cultural, economic, political, and public health landscape.

The 31 reasons are:

The Rise of the New American Casino
1. Casino gambling has moved from the margins to the mainstream of American life.
2. Today’s regional casinos are different from Vegas-style resort casinos.

The Casino’s Modern Slot Machines
3. The new American casino is primarily a facility filled with modern slot machines.
4. A modern slot machine is a sophisticated computer, engineered to create fast, continuous, and repeat betting.
5. Modern slot machines are carefully designed to ensure that the longer you play, the more you lose.
6. Modern slot machines are highly addictive.
7. Modern slot machines are engineered to make players lose track of time and money.

The Casino’s Health Impact
8. Casinos depend on problem gamblers for their revenue base.
9. Living close to a casino increases the chance of becoming a problem gambler.
10. Problem gambling is more widespread than many casino industry leaders claim.
11. Problem gambling affects families and communities as well as individuals.
12. Young people are viewed as the future of casino gambling.
13. Working in a casino appears to increase workers’ chances of having gambling problems.
14. Working in a casino appears to increase workers’ chances of having health problems.

The Casino’s Economic Impact
15. The benefits of casinos are short-term and easy to measure while many of their costs are longer-term and harder to measure.
16. Casinos extract wealth from communities.
17. Casinos typically weaken nearby businesses.
18. Casinos typically hurt property values in host communities.

The Casino’s Political Impact
19. Casinos are the creation of state government and its public policies.
20. State regulation of casinos creates a conflict of interest, in which the state is charged with protecting the public from the very business practices that generate revenue for the state and which the state is co-sponsoring.
21. States are typically failing to protect their citizens from the harms of state-sponsored casino gambling.
22. States are typically failing to provide adequate help for the treat-ment of problem and compulsive gambling.
23. Some states are propping up failing casinos.
24. Over time, casino expansion within a state and in nearby states can create a downward economic spiral of market saturation, sluggish state revenues, and failing casinos, marked by an ever-growing competition in which each state tries to lure other states’ citizens into its casinos.
25. Regional casinos are a regressive source of revenue for the states.

The Casino’s Intellectual Impact
26. Research on gambling in America is largely funded by the gambling industry.
27. Research on gambling funded by the gambling industry focus¬es overwhelmingly on the individual pathology and pharmacology of gambling addiction while avoiding research into machine design, player profiling, and other industry practices and technological innovations that foster gambling addiction.

The Casino’s Social Meaning
28. State sponsorship of casinos is a policy contributing to patterns of inequality in America.
29. State sponsorship of casinos raises troubling ethical questions about fairness and equal treatment of citizens.

The Casino’s Historical Meaning
30. Encouraging people to put their money into slot machines has historically been viewed as unethical.
31. Encouraging legal gambling as “fun” entertainment and an all-American pastime is a historically new development.

As predatory casino gambling continues to permeate the nation, there is an urgent need to understand the impact it is having.

Michele Simon is a public health lawyer specializing in industry marketing and lobbying tactics. She is the author of Appetite for Profit: How the Food Industry Undermines Our Health and How to Fight Back, and president of Eat Drink Politics, an industry watchdog consulting business.

Ms. Simon asks PHAI’s senior staff attorney, Cara Wilking, about deceptive food marketing to kids, concerns about food industry self-regulation of marketing practices, technical assistance we provide, and what PHAI and lawyers like Cara can contribute to the good food movement.